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'The tort of private nuisance is ineffective and has little relevance in the modern law of torts.' Discuss the tort of private nuisance in light of the above statement.

'the tort of private nuisance is ineffective and has little relevance in the modern law of torts.' discuss the tort of private nuisance in light of the above statement.

The tort of private nuisance may be defined as the unlawful and indirect interference with a person's use or enjoyment of land in which they have an interest. The tort has developed over a long period of time and exists in common law.

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The tort of private nuisance may be defined as the unlawful and indirect interference with a person's use or enjoyment of land in which they have an interest. The authorities have also held that the interference needs to be continuous. An action in private nuisance usually involves neighbours, and the courts have to balance the rights of the land owner and his needs and the rights of his neighbour to be able to use and enjoy his land. The interference is likely to be indirect, direct invasion would be covered by the tort of trespass.

The tort has developed over a long period of time and exists in common law. The courts have established that certain key elements need to exist if the tort is to be established.

The claimant must have an interest in the land affected by the nuisance. It was Lord Lloyd in Hunter v Canary Wharf (1997) who reminded us that private nuisances may fall into different categories and amount to nuisance

(1) by encroachment on a neighbour's land;

(2) by direct physical injury to a neighbour's land;

(3) by interference with a neighbour's quiet enjoyment of his land.

In many ways it is often easier to explain what amounts to a private nuisance by giving an example of what has been held to amount to an indirect interference. In Sturges v Bridgman (1879) noise was held to be sufficient nuisance. The facts of the case were that a doctor moved next door to a confectioner. The confectioner had produced sweets for sale in his kitchen for many years. The doctor used his own property for private practice. However, the loud noises from the confectioner's industrial equipment could be clearly heard and this disrupted his use and enjoyment of his land.

The locality of the area may be a material consideration and what may be acceptable in one area may not be in another. This point was made clear in Sturges v Bridgman by the now famous words 'What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.......'

In the leading case of St Helens Smelting v Tipping (1865) smoke and fumes were the cause of the interference which resulted in damage to trees and shrubs. The House of Lords found for the Claimant. Where there is actual physical damage to property, the question of locality has no relevance.

Some nuisances may result in damage and some may cause an interference with comfort or enjoyment of land. In Halsey v Esso Petroleum (1961) the defendant company's actions disturbed a neighbour's sleep by causing noise and vibrations as well as damaging clothes from acid smuts. It was held thatfilling oil tankers at 10am was reasonable, but to do so at 10pm was unreasonable. Some interference is to be expected perhaps, and the courts have determined that for a private nuisance to exist, the interference needs to be unlawful and unreasonable. In addition we have already seen that the courts will give consideration to certain factors such as the locality as in Sturges v Bridgman (1879).

There are other considerations such as the duration of the interference as in Spicer v Smee (1946), when a fire caused by faulty wiring started on the defendant's property and spread to the neighbour's property. The neighbour's action for nuisance succeeded as the faulty wiring was classed as a continuing state of affairs. Abnormal sensitivity as in Robinson v Kilvert (1889) is another consideration. In this latter case the court held that the claimant was not entitled to a remedy on the basis that he was particularly sensitive to the potential nuisance. The facts were that the claimant's landlord maintained the heat in his cellar at 80ºF (27ºC) temperature for the purposes of his business. The heat affected a paper warehouse business conducted by a tenant on a floor above. The court held that the landlord's use of the cellar was reasonable and the damage was due to the special sensitivity of the paper.

In Christie v Davey (1893) the presence of malice on the part of the defendant was a material factor. The claimant alleged that he had been giving music lessons in his semi-detached house for several years. The defendant, acting out of malice because he was irritated by the noise, banged on the walls, shouted, blew whistles and beat tin trays with the malicious intention of not only annoying his neighbour but also spoiling the music lessons. The court granted an injunction to restrain the defendant's behaviour.

Malice was also an influencing factor in the leading case of Hollywood Silver Fox Farm v Emmett (1936) the defendant, driven by ill will, deliberately fired guns near the boundary of the claimant's land in order to scare the claimant's silver foxes. The defendant deliberately fired the guns at breeding time when the the foxes were most vulnerable. This was held to be a nuisance and the precedent set in Christie v Davey was followed despite the sensitivity of the silver foxes.

In Bradford Corporation v Pickles (1895), the claimant deliberately diverted water flowing through his land, away from his neighbour's property. The claimant intended to force them to buy his land at an inflated price. Despite the question of motive the court held that he was committing no legal wrong because no-one has a right to uninterrupted supplies of water which percolates through from adjoining property.

The law of tort is ordinarily concerned with identifying who is blameworthy and the tort of private nuisance is no exception. Ordinarily damages follow an award in a civil case and therefore an essential element is the correct identification of the party or parties responsible for the nuisance. Over the years a number of defences have developed and may be effective in defeating a claim of nuisance. The first of these is known as prescription and this arises if it can be shown that the nuisance has continued for 20 years without interruption. This issue arose in the case of Sturges v Bridgman (1879).

The defence of statutory authority may be pleaded if it can be shown that the activities complained of by the claimant were authorised expressly or implied by a statute. In Allen v Gulf (1981) it was shown that Parliament intended a refinery to be constructed and the defence was allowed.

Issues of environmental harm and economic benefit are often argued out in the context of planning permissions granted by local authorities. Subsequent environmental harm may give rise to nuisance but the planning permission can appear to be a valid justification for what in effect amounts to a nuisance.

Such arguments arose in the case of Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) which involved permission for the defendant company to redevelop Chatham Dockyard as a commercial port. The council argued that the economic benefit would far outweigh any potential noise problems. In the event the problem got so bad at one time that some 750 lorries were used in the port each day around the clock. However the case turned on the issue that the port had changed in its character over a period of years and this was more important when deciding what amounted to unreasonable behaviour. The claimant’s actions failed.

The question of whom may be sued may be an important matter when it comes to a remedy and particularly if the nuisance is continuing. This might include any person who creates the nuisance whether or not that person is the occupier of the land at the time of the action. It may extend to occupiers who adopt and continue to allow nuisances on their land. This may be so even if such nuisances were created by their predecessors in title, trespassers or third parties. Finally a landlord may be liable for nuisances in some circumstances, e.g. if the landlord had knowledge of the nuisance but still carried on and let the property, or where the landlord reserved the right to enter and repair the premises but did not act to deal with the nuisance.

In civil law, damages are a natural remedy and the law of nuisance is no exception. However, with a nuisance which is still continuing, damages may not be enough in themselves if the award is not sufficient to bring an end to the nuisance. It follows that the remedy of an injunction is commonly sought as a remedy in nuisance actions. However there can be no certainty that an injunction will be granted. The courts need to be satisfied about certain conditions and this includes the point that damages in themselves would be inadequate.

The grant of an injunction is discretionary and there must be no impediment to the court exercising its discretion. There are also limitations to the court's supervisory powers in the sense that the courts do not have limitless resources at its disposal to police the actions of parties Kennaway v Thompson (1981). The claimant brought an action against a motor boat racing club in nuisance for the noise and disturbance experienced. The claim was successful and damages were awarded but the judge refused to grant an injunction . The claimant appealed and a partial injunction was granted meaning the club had to adhere to strict timetables for the races.

Turning to the question of the relevance of private nuisance in the modern law of torts, a number of issues arise which could be said to limit the effectiveness of the tort and these merit further discussion.

The nature of the tort of private nuisance is, in a sense, a source of some difficulty in that it necessarily involves a balancing of the competing interests of neighbours. The fact that such interests appear to be competing with each other then leads to the close scrutiny of the 'use' complained of to determine whether the 'use' is unlawful and if it interferes with another's use of their land.

These matters are not necessarily easily determined and so cases such as these can be expensive and time consuming. On the one hand there would no doubt be the traditional argument that it is a free country and that we should be free to use our property in whatever way we wish, as long as it is not unlawful or does not harm our neighbour. Therein lies the problem in that the courts have to decide what amounts to what is or is not lawful and at what point the 'use' complained of becomes unacceptable and a nuisance.

The approach taken is to determine whether the use of the land is unreasonable but this is not necessarily straightforward. Bearing in mind that nuisance is concerned with indirect interference such as noise, smell, smoke or fumes (St Helens Smelting v Tipping) as opposed to some direct form of interference such as occupation. This means that a degree of subjectivity is bound to be involved. Some degree of noise is to be expected even in the best run households but at what point does the noise become an actionable nuisance?

Added to this difficulty is the problem that the reasonableness issue is further complicated by the fact that the locality of the premises in question as in Sturges v Bridgman (1879) as well as the duration of the matter complained of are considered relevant factors. It would be interesting to know how many times those famous words 'What would be a nuisance in Belgravia Square would not necessarily be so in Bermondsey.......' have defeated a private nuisance claim.

The presence of malice on the part of either party has also been seen to affect the outcome as can be seen in the cases referred to earlier but to what extent should such factors be taken into account?

In other areas of the law we are concerned more about whether the accused committed the act and, if so, whether this was intentional or reckless. Many would say that is the proper way to go about establishing blameworthiness and that we need not go further and examine their motive or reasons for acting in the way they did. Nuisance is after all a fault based tort so why should we be concerned with malice?

It seems that some difficulties with nuisance extend to potential defences to a claim in nuisance and the fact that such defences can be mounted suggest to some that the tort is ineffective in many circumstances.

For example the act of a stranger is sufficient to defeat a claim unless it can be shown that the defendant adopted the act. In Sedleigh-Denfield v O'Callaghan [1940]the potential source of the nuisance was created by a trespasser who had laid a drain on the defendant’s land. Eventually the defendants used the drain themselves. After a storm the grate came out of place and the drain became blocked causing the plaintiff's neighbouring land to become flooded. The defendants were held liable for the damage even though they had not laid the drain but they had adopted it.

It could be said that the defence of prescription as outlined in Sturges v Bridgman (1879) above is also flawed as it is not based upon any question of reasonableness.

In addition the requirement and issuing of planning permission such as Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) can appear to give a 'seal of approval' to create a nuisance thus complicating the process of claiming still further and the question of whether public policies such as the economic well being of a community appears to add a dimension which must be extremely difficult to balance with the needs of the parties affected. The argument has also been raised that as nuisance is fault based like negligence, the tort of private nuisance should be done away with and replaced with a form of negligence.

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This work sets out a definition of the tort of private nuisance.

The essay covers the key elements that need to exist if the tort is to be established.

The definition of nuisance is supported by examples of what has been held to amount to a nuisance.

Factors taken into account by the courts such as duration, abnormal sensitivity as well as malice are also raised and illustrated.

The important issue of who may be sued is also referred to as well as the matter of defences, including the granting of planning permissions. The essay briefly mentions remedies, including the matter of discretionary remedies, such as an injunction.

The essay goes on to look at the question of the relevance of private nuisance in the modern law of torts and discusses in detail the issues which arise and could be said to limit the effectiveness of the tort.

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